dissenting:
In overturning the Civil Service Commission’s determination that it lacked jurisdiction in this case, I feel the majority opinion, even in its revised form, expands without justification the concept of involuntary resignation.
*410The facts are not difficult and bear brief restatement. On March 26, 1971, plaintiff received official notification of his RIF, effective three months later. On May 4, a retirement annuity increase was announced for federal employees separated prior to June 1. This was a standard, government-wide annuity increase option. It by no means reflected a conscious effort to force any particular employee to sacrifice Civil Service appellate rights for higher retirement benefits. Plaintiff was advised in no uncertain terms on May 28 that his resignation to take advantage of the annuity increase would cut off all rights to appeal the approaching K.IF. He had no special right to “verify” this advice from his personnel office.
Under these circumstances, it does not make good sense to find the resignation was involuntarily extracted. Plaintiff clearly wanted the 'financial benefits early retirement brought. He cannot be heard to claim simultaneous retention of employment protections.
The court-developed test is that the element of voluntariness is vitiated only when resignation is submitted under duress brought on by government action. The explicit elements of such duress, which the court here chooses not to apply, are:
* * * (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and ('3) that said circumstances were the result of coercive acts of the opposite party. * *• *
McGucken v. United States, 187 Ct. Cl. 284, 289, 407 F. 2d 1349, 1351, cert. denied, 396 U.S. 894 (1969); Pitt v. United States, 190 Ct. Cl. 506, 513-14, 420 F. 2d 1028, 1032 (1970).
Because coercion is a necessary element of this test, a former employee’s burden of establishing his resignation was involuntarily extracted is a heavy one. Reflecting the case law on the subject, Civil Service regulations point out:
The fact that the employee may be faced with an inherently unpleasant situation or that his choice may be limited to two unpleasant alternatives, does not make the resulting action an involuntary action.
Federal Personnel Manual (FPM) Supp. 752-1, subchapter Sl-2a(3).
*411Thus, resignations bave been held voluntary when submitted in order to avoid geographical reassignment, McGucken v. United States, supra, and criminal prosecution, Pitt v. United States, supra. See also Rich v. Mitchell, 273 F. 2d 78 (D.C. Cir. 1959). Even resignation “under protest” to avoid a charge of gross insubordination has been found voluntary and binding. Cosby v. United States, 189 Ct. Cl. 528, 417 F. 2d 1345 (1969).
•Resignation has been found involuntary and thus without legal effect by this Court in instances of mental incompetence, Manzi v. United States, 198 Ct. Cl. 489 (1972), and where the employee sought to withdraw the resignation before its effective date, Cunningham v. United States, 191 Ct. Cl. 471, 423 F. 2d 1379 (1970). Neither of these special circumstances is here present.
The court cites an FPM provision which lists “time pressure” as one factor reducing apparently voluntary resignation to an adverse action. It is doubtful, however, that the regulation was intended to cover the situation at hand. Duress has been found when the resigning party was required to tender resignation on the spot, without time to consider the move or consult with family members. Paroczay v. Hodges, 297 F. 2d 439 (D.C. Cir. 1961). On the other hand, however, this and other courts have found as little as three days a sufficient time in which to make a truly voluntary determination to resign. McGucken v. United States, supra at 289, 407 F. 2d at 1351; Rich v. Mitchell, supra at 79.
In the present case, plaintiff was informed of the opportunity to resign for increased retirement benefits a full four weeks ahead of the option-exercised deadline. As suggested above, the assertion that plaintiff had to “verify” the fact that he would lose administrative appellate rights by resigning represents an effort to inject into the facts an artificial element of “time pressure.”
It is manifest that the Government’s action in this situation betrayed no coercive element and that resignation was not the “only alternative” under the circumstances. Consequently, the Civil Service determination that plaintiff’s surrender of his appellate rights was voluntary is supported by substantial evidence. I would dismiss the petition.